OFFICIAL RELEASE OF CLASSIFIED INFORMATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85B00236R000200070017-8
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 12, 2016
• Document Release Date: October 9, 2001
• Sequence Number: 17
• Publication Date: April 25, 1980
• Content Type: MF

OGC Has Reviewed
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0GC 80-03544
25 April 1980
SUBJECT: Official Release of Classified Information
REFERENCE: Memorandum, dated 27 November 1979, from
C/CRD to C/ISS & GC, Subj. Decision Requested
on Point of Executive Disclosure Related to
to Pentagon Papers
1. By referenced memorandum, the Chief, Classification
Review Division, has requested advice from this Office on
whether there is any merit to the position that the release
of the Pentagon Papers by the Defense Department may not
constitute an authorized "executive disclosure" as to CIA's
information if CIA has not concurred in the release. Since
you, on behalf of C/CRD, and I have discussed this question
on numerous occasions, this memorandum merely summarizes the
opinions I have already expressed to you.
2. As you are aware, classified information may be
declassified by the classifiers, a successor, or a supervisory
official of either. See Executive order 12065, Section 3-102.
Moreover, the "third-agency rule" requires each agency that
has received classified information from another agency to
obtain the consent of such agency before disseminating the
information to any third agency. This requirement, a carryover
from the predecessor Order of Executive Order 12065, i.e.,
Executive Order 11652, establishes the principle under which
executive agencies operate when attempting to declassify
information: coordination is essential. While the Order
authorizes lower echelon employees also to exercise declas-
sification authority, I am aware of no provision that would
permit one agency of the government unilaterally to declassify
and release information classified by another government
agency. This principle is further evidenced in regulations
implementing Executive Order 12065, including ISOO Directive
No. 1 with respect to coordinating the review of information
during mandatory review requests.
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3. Nevertheless, this Executive branch principle that
only the classifying agency, or agency otherwise having
classification jurisdiction, may declassify information
fairly may be said to be effective only so long as it is
actually followed, since a release of classified information
by any agency may be said to "effectively" declassify that
information by placing it in the public domain. While
administrative sanctions may be appropriate if an agency
fails to observe the coordination requirements, the situation
alters if an individual's First Amendment rights are at
stake. Thus, there is no single answer to your question.
4. When information becomes available to the public,
it becomes difficult to maintain that a republication of
that information will cause additional damage to the national
security. That is not to say that such an argument can
never be made, particularly if the executive has not yet
confirmed the initial disclosure; however, the more extensive
the dissemination, the greater the difficulty in subsequently
maintaining that that or similar information will cause
damage if released. Moreover, as to particular documents
that are released by an exeutive agency, it will be extremely
difficult, if not impossible, to explain how a republication
would cause additional damage to the national security.
5. You have asked for a general analysis of the legal
effects of an agency's releasing the information of another
agency without the latter agency's consent. Although I have
indicated to you the specific requirements of Executive
Order 12065, valid as operating procedure to be followed by
all Executive branch agencies, clearly a flat rule and
inflexible adherence to the "letter" of the Order will not
be valid for all purposes. With respect to a release in the
FOIA context, the Agency will be required to reach a decision
on the merits of the case itself, with primary attention
devoted to determining the identifiable damage to the national
security that could be expected to result from the contemplated
disclosure. It is conceivable that there could be evidence
of damage so great that deletions of offending language
would still be appropriate. I suggest, however, that the
burden of proof will invariably be a difficult one in such
cases.
6. Moreover, Agency officials reviewing manuscripts
submitted for prepublication review cannot assert the con-
tinued classification of documents already in the public
domain, because there exist constitutional requirements
evidenced by case law with respect to freedom of speech and
prior restraints (See the~ase). To argue that U.S. STATINTL
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documents placed by one agency in the public domain were not
"officially" released and, therefore, that information
derived therefrom is subject to sanitization because of a
violation of the third-agency rule would fly in the face of
reality, be inconsistent with such precedent, and, therefore,
would stand no chance of success in this context. Please do
not hesitate to contact me if you have any questions STATINTL
or comments.
STATINTL
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